Synopsis

Defendant’s motion for a protective order prohibiting the disclosure of a
file maintained by the Inspector General’s Office of the Department of
Correctional Services is granted. The file materials contain documents from
another inmate’s unrelated grievance that are neither material nor
relevant to claimant’s dispute, as well as statements by witnesses,
correction officers and prison officials. The Court further concludes that
claimant’s motion for an order striking defendant’s answer, granting
a default judgment and imposing sanctions is not warranted.

Case Information

UID:

2009-039-129

Claimant(s):

DETROY LIVINGSTON

Claimant short
name:

LIVINGSTON

Footnote (claimant name)
:

Defendant(s):

STATE OF NEW YORK

Footnote (defendant name)
:

Third-party
claimant(s):

Third-party
defendant(s):

Claim number(s):

106797

Motion number(s):

M-76154, M-76472

Cross-motion
number(s):

Judge:

James H. Ferreira

Claimant’s
attorney:

Detroy Livingston, pro se

Defendant’s
attorney:

Hon. Andrew M. Cuomo Attorney General of the
State of New YorkBy: Joan
MatalavageAssistant Attorney General

Third-party
defendant’s attorney:

Signature date:

August 4, 2009

City:

Albany

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

This claim arises out of an alleged assault upon claimant by a correction
officer on November 26, 2001 at the Coxsackie Correctional Facility. Issue was
joined, and on May 30, 2003 claimant filed a motion pursuant to CPLR § 3124
to compel disclosure of certain items of discovery from his demand dated January
27, 2003. By Decision and Order dated November 18, 2003, the Court (Sise, J.)
denied in part and granted in part claimant’s motion to compel. During
February 2008, claimant moved the Court for a second time seeking an order
compelling disclosure of six items requested in his demand dated November 26,
2007. By Decision and Order dated November 17, 2008, the Court (Ferreira, J.)
granted claimant’s motion.

In response to the Court’s November 2008 Decision and Order, defendant
now moves the Court pursuant to CPLR 3103 for a protective order prohibiting the
disclosure of a file maintained by the Inspector General’s Office of the
Department of Correctional Services identified as IAD/03/1584 (see
Defendant’s Exhibit “A”). Claimant opposes the motion and
moves the Court for an order pursuant to CPLR 3126 (3) striking the answer,
granting a default judgment and imposing sanctions as a result of
defendant’s alleged failure to provide claimant with “[a]ny/all
lawsuit[s] against c.o. Thomas T. Notabartolo going back five (5) years prior to
the November 26, 2001 incident” pursuant to claimant’s January 2003
discovery demand. Defendant opposes claimant’s motion.

CPLR 3103 provides that

“[t]he court may at any time on its own initiative, or on motion of any
party or of any person from whom discovery is sought, make a protective order
denying, limiting, conditioning or regulating the use of any disclosure device.
Such order shall be designed to prevent unreasonable annoyance, expense,
embarrassment, disadvantage, or other prejudice to any person or the
courts.”

Upon a review of IAD/03/1584, the Court concludes that a protective order of
the file materials is warranted. IAD/03/1584 contains documents from another
inmate’s unrelated grievance that are neither material nor relevant to
claimant’s dispute. Moreover, IAD/03/1584 contains statements by
witnesses, correction officers and prison officials. Thus, the Court is unable
to conclude that claimant’s interest in the disclosure of IAD/03/1584
outweighs the State’s interest in “maintaining the integrity of its
internal investigations and protecting the confidentiality of sources who
provide sensitive information within a prison context” (Lowrance v
State of New York, 185 AD2d 268, 269 [1992]).

The Court further concludes that an order striking defendant’s answer,
granting a default judgment and imposing sanctions is not warranted. Claimant
contends that defendant still has not complied with his request for
“[a]ny/all lawsuit[s] against c.o. Thomas T. Notabartolo going back five
(5) years prior to the November 26, 2001 incident” pursuant to his January
2003 discovery demand. In support of his motion, claimant refers to a federal
lawsuit brought against c.o. Notabartolo by Marvin S. Shaheen, which was filed
on November 12, 2003 and assigned docket # 03-CV-01366, and to an alleged
statement made by c.o. Notabartolo to claimant that “he had recently beat
two lawsuits filed by prisoners by filing documents to justify or cover-up what
happened” (Affidavit in Support of Motion to Set Sanction on Defendant at
¶ 19). In opposition to the motion, defendant asserts that the November
2003 federal lawsuit against c.o. Notabartolo was not disclosed to claimant
because it arose from an incident that occurred two years after the 2001
incident that is the subject of the claim, and therefore falls outside of the
time frame requested in claimant’s demand.

Inasmuch as the federal lawsuit relates to an incident involving c.o.
Notabartolo that occurred after the incident that is the subject of the claim,
the Court finds that it falls outside of the time frame designated in
claimant’s demand and cannot be the basis for imposing any penalties for
refusal to comply pursuant to CPLR 3126. Nor is the alleged reference to prior
lawsuits by c.o. Notabartolo in a statement to claimant, without more,
sufficient to warrant the imposition of penalties against defendant for its
failure to comply with claimant’s demand.

Accordingly, it is hereby

ORDERED that M-76154 is granted, and that defendant is prohibited from
disclosing the materials attached to defendant’s motion as Exhibit
“A” and identified therein as IAD/03/1584; and it is further

ORDERED that M-76472 is denied.

August 4, 2009Albany,
New York

HON. JAMES H. FERREIRAJudge of the Court of Claims

Papers Considered

:

Notice of Motion for Protective Order dated January 20, 2009;

Affidavit in Support of Motion for Protective Order by Joan Matalavage, AAG,
sworn to on January 20, 2009 with exhibit;

Notice of Motion in Opposition of Protective Order dated March 16, 2009;

Affidavit in Support of Opposition to Protective Order by Detroy Livingston,
sworn to on March 18, 2009;

Notice of Motion to Set Sanction on Defendant dated March 19, 2009;

Affidavit in Support of Motion to Set Sanction on Defendant by Detroy
Livingston, sworn to on March 22, 2009 with exhibits; and

Affidavit in Opposition by Joan Matalavage, AAG, sworn to on March 31,
2009.